There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does. (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.) On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens. Glenn Greenwald does a nice job setting out the case at salon.com. On the other side, supporters say that it only codifies the government's authority under existing law. Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.

It turns out, both sides are right. In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF. Here are some of the highlights:

Detainable Persons.Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks." Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." (Section 1022 covers a subset of detainable persons in Section 1021. U.S. citizens and resident aliens are excepted from the requirement; more below.) In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners. But again, this is an authority that the administration claimed from its early days. Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases. And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban." So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.

Detainability of U.S. Citizens. Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States. This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens. The Act is deliberately ambiguous on this point and seems to punt to the courts. But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.

Guantanamo Transfers. Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States. This restriction means that the administration can't transfer detainees for civilian criminal trials. The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.

Civilian Trials. In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.

These provisions in the NDAA represent significant and explicit congressional approval of government detention authority. But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches. In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.

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Comments

The NDAA only goes to further stifle our Constitutional Rights without the approval of the Americans, just as the Patriot Act was adopted WITHOUT public approval or vote just weeks after the events of 9/11. A mere 3 criminal charges of terrorism a year are attributed to this act, which is mainly used for no-knock raids leading to drug-related arrests without proper cause for search and seizure. The laws are simply a means to spy on our own citizens and to detain and torture dissidents without trial or a right to council. You can read much more about living in this Orwellian society of fear and see my visual response to these measures on my artist’s blog at http://dregstudiosart.blogspot.com/2011/09/living-in-society-of-fear-ten-years.html

You appear to argue that the provisions at issue do not represent a significant threat to civil liberties because they "merely" give congressional approval and the force of legislation to claims of executive power. Separation of powers works to protect liberty only if the separate branches act as checks on arrogations of unwarranted power by other branches. It seems extremely significant to me that, as with previous claims of executive authority to detain persons accused of "terrorism" without due process, the federal legislature is again simply adding its imprimatur to the executive branch's assertions. All that remains is for Congress to suspend habeas corpus and the courts can withdraw completely from the business of protecting our freedom.

Posted by: Jeffrey G. Purvis | Dec 21, 2011 11:29:04 AM

Dear Jeffrey,

I agree with you, and didn't mean to suggest that this is no serious matter. It is, of course, for the reasons you say. But in important respects, the NDAA is "only" giving congressional sanction to powers already claimed by the President or authorized by the courts. (I use "only" here, and "merely" earlier, to mean that the NDAA doesn't seem to also expand those powers.)

The congressional sanction is significant, to be sure. But as to powers already claimed by President Obama: congressional sanction doesn't make them any more constitutional. And as to powers already authorized by the courts: congressional sanction doesn't change or augment them.

Thus if we have a problem with the NDAA--and I, like you, do--it should be this: that Congress did not move to curtail the dramatic and expansive powers claimed by the President or authorized by the courts.

This doesn't say anything about the NDAA's restrictions on the President's ability to move Guantanamo detainees to the U.S. or to try them in Article III courts. That's a whole different problem--one that President Obama will apparently address in a signing statement (yet another problem). More to come.

Thanks for your comment.

Steven D. Schwinn

Posted by: Steven D. Schwinn | Dec 28, 2011 10:06:39 PM

You address it but it bears underlining that executive "claims" and policy that is backed up by statutory law (law open-ended enough that a signing statement is required to not the need to apply it a certain way) are not the same thing. Youngstown underlines the point.

"stifle our Constitutional Rights without the approval of the Americans"

Americans voted for the people who drafted & signed this legislation, including members of the House which via '10 new membership wanted something worse. In our system, this is "approval."

Without trial, how can it be proven that a person has "planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks"? One can be detained indefinitely and be innocent of any of these. The purpose of our legal system is to help discern the accusations from the facts. Anything else is a witch hunt and unconstitutional. Who says a person has aided terrorists? How do we know if the accusations are true? By removing habeas corpus, Congress has handed our legal rights over to anyone in a position of power who chooses to use it. As we have already seen, not all of the Guantanamo detainees have been terrorists. Some were just unlucky, though innocent people who got caught up in the mess. Their innocence has not saved them, however, from torture and years of detention. There are really very few steps from the detention of "bad guys" without giving them trials, to detentions of newspaper editors, demonstrators, and imams who try to speak out for the civil rights of their congregations--without trials, without showing cause, without recourse. Anybody can be a terrorist (or a witch) when there is no proof.